Smith, Terrence v. Zachary, Robert

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-4084
TERRENCE SMITH,
Plaintiff-Appellant,
v.
ROBERT ZACHARY, JAMES P. NICKERSON,
Lieutenant, HERMAN S. NELSON, GRACIANO
ARROYO, JAMES A. PHILLIPS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 96 C 507--Gerald B. Cohn, Magistrate Judge.
Argued April 9, 2001--Decided June 28, 2001
Before POSNER, EVANS, and WILLIAMS, Circuit
Judges.
EVANS, Circuit Judge. The issue
presented in this case is whether a
federal prisoner must satisfy the
exhaustion requirement of the Prisoner
Litigation Reform Act (PLRA) when he
claims he was beaten by prison guards.
The prisoner, Terrence Smith, argues that
his claim--the result of an alleged act
of excessive force against him--is exempt
from the PLRA’s exhaustion requirement
because it’s outside the scope of the
phrase "prison conditions" under the Act.
In 1996 Smith filed this suit pro se/1
seeking $3.5 million in damages for
allegedly being beaten, in 1995, by
prison guards in retaliation for
participating in a prison riot. The
federal prison system has an
administrative review process which
requires prisoners to notify the prison
staff of a complaint within 20 days. If
the prisoner is not satisfied with the
warden’s response, he can appeal on a
formal basis to the regional and then to
the central office of the Bureau of
Prisons. Smith filed an informal
complaint 55 days late and failed to
appeal the warden’s response through the
various tiers of administrative review.
The amended version of the PLRA sec.
1997e(a) provides: "No action shall be
brought with respect to prison conditions
under section 1983 of this title, or any
other Federal law . . . ." 42 U.S.C. sec.
1997e(a) (1996). Because the word
"conditions" is plural, Smith argues that
the plain meaning of the term "prison
conditions" can only refer to on-going
circumstances that affect the prison
population as a whole. It was not
intended, he says, to include an isolated
event, such as an assault in which a
specific inmate is singled out and
harmed. Moreover, he contends it would
not be cricket to look to a related
statute--Title 18 U.S.C. sec. 3626--as an
aid in determining the meaning of "prison
conditions" in sec. 1997e.
We do not interpret statutes in a
vacuum. The plain meaning rule is
applicable when the statutory language is
clear, unambiguous, and not controlled by
other parts of the act or other acts on
the same subject. 2A Norman J. Singer,
Sutherland Statutory Construction sec.
46:01 (rev. 6th ed. 2000). Thus, "the
meaning of statutory language, plain or
not, depends on context." Holloway v.
United States, 526 U.S. 1, ___, 119 S.
Ct. 966, 970 (1999) (quoting King v. St.
Vincent’s Hosp., 502 U.S. 215, 221
(1991)). "It is a fundamental canon of
statutory construction that the words of
a statute must be read in their context
and with a view to their place in the
overall statutory scheme." FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120,
___, 120 S. Ct. 1291, 1301 (2000)
(quoting Davis v. Michigan Dept. of
Treasury, 489 U.S. 803, 809, 109 S. Ct.
1500 (1989)). Thus, the meaning of a
statute may be affected by a related act,
especially if that act provides greater
specificity on the issue at hand. Id.Here, although sec. 1997e does not
define the term "prison conditions,"
another section of the PLRA does. Amended
on the same day, Title 18 U.S.C. sec.
3626 is part of the same legislation as
sec. 1997e and addresses the same
subject--the appropriate remedies for and
limitations on prisoner litigation. Smith
argues that the two statutes have
entirely different objectives; that sec.
3626 limits prospective relief while sec.
1997e prevents prisoners from bringing
frivolous suits. We think Smith’s reading
of both statutes is a tad too narrow.
Both sections are devoted to various
aspects of prison litigation, including:
settlement agreements, the appointment of
special masters, attorneys’ fees awards,
the use of telephonic hearings, waiver,
and limitations on recovery. Neither
statute is a one-issue act and both are
tailored to address problems unique to
incarcerated litigants. More importantly,
both are part of the same legislation
with the same overarching objectives--to
enable prison officials to resolve
complaints internally and to limit
judicial intervention in the management
of state and federal prisons. Thus, it
makes good sense to assume that a
definition provided by Congress in one
statute applies to another related
statute. On this point, three of our
sister circuits are in agreement. See
Higginbottom v. Carter, 223 F.3d 1259(11th Cir. 2000); Booth v. Churner, 206
F.3d 289 (3d Cir. 2000), cert. granted,
121 S. Ct. 377 (Oct. 20, 2000) (No. 99-
1964);/2 Freeman v. Francis, 196 F.3d
641 (6th Cir. 1999).
In sec. 3626, Congress defines the term
"a civil action with respect to prison
conditions" to mean either "an action
with respect to the conditions of
confinement" or a suit arising from the
"effects of actions by government
officials on the lives of persons
confined in prison." 18 U.S.C. sec.
3626(g)(2). Smith’s claim falls within
the second half of this definition. He
was affected by an action, allegedly an
assault, by government officials, viz.,
prison guards. However, Smith argues that
the designation "government official"
does not apply to prison guards, but
rather refers only to "senior policy-
making and administrative officials." We
find no basis for adding these qualifiers
to the plain language of the statute.
Even were we to disregard the guidance
provided by Congress in sec. 3626(g)(2)
and to look only to the term "prison
conditions" to determine the scope of
sec. 1997e, we would reach the same
result. Smith asks us to apply the plain-
meaning rule concluding that the plural
word "conditions" cannot include a single
or momentary matter such as an assault.
First, the distinction between plural and
singular words is not scrupulously
observed in legislative language. 2A
Sutherland Statutory Construction sec.
47:34. For instance, the opening section
of the United States Code, of which sec.
1997e(a) is a part, contains the
following rule of construction: "In
determining the meaning of any Act of
Congress, unless the context indicates
otherwise . . . words importing the
plural include the singular." With this
guidance, we assume Congress intended the
plural word "conditions" to include a
singular event.
Second, Smith crafts his claim as an
isolated event, a freak occurrence that
will not be repeated. However, the nature
of the event is open to interpretation.
An assault by a prison guard could be a
by-product of systemic problems,
including poor hiring procedures,
insufficient training and supervision, or
an inadequate procedure for responding to
prison riots or insubordinate behavior by
prisoners. Given that part of a prison
guard’s job is to control inmates, the
use of excessive force in achieving this
end can be viewed as a management
failure, not only as a random act of
violence. We read the term "prison
conditions" in context--not only as it
relates to other statutory provisions,
but with regard to the real-world
environment in which sec. 1997e applies.
Matter of Handy Andy Home Improvement
Ctrs., Inc., 144 F.3d 1125, 1128 (7th
Cir. 1998) ("When context is disregarded,
silliness results"). In the context of
prisons, harassment from correctional
officers or government officials is not
equivalent to an unsolicited attack on
the street; rather, the harassment is
made possible by the correctional
environment. Thus, a remedy lies in
addressing prison conditions that
facilities or tolerates aberrant behavior
by guards.
Finally, we note the obvious: no canon
of statutory interpretation requires us
to abandon common sense. Here, Smith
hangs his hat not on a single word, but
on a single letter. Based on this, he
asks us to create an exception allowing
for speedy review of factually rich,
excessive force claims affecting a single
inmate, while requiring claims concerning
prison policies affecting the entire
prison population to proceed through
administrative review. This is
counterintuitive. Not only would claims
affecting the least number of people be
addressed first, but judges would be
required to review these factually
intense claims of assault and harassment
without the benefit of the administrative
review process, where, at a minimum, the
basics of who-did-what-to-whom are at
least given some initial consideration.
Again, the plain meaning rule does not
strap us to every word and letter if, in
animating such words, we would reach an
absurd result. See Johnson v. United
States, 529 U.S. 694, 707, 120 S. Ct.
1795, 1804 (2000); United States v.
Balint, 201 F.3d 928, 932 (7th Cir. 2000)
("[O]ur interpretation is guided not just
by a single sentence or sentence
fragment, but by the language of the
whole law . . . .").
Next, Smith argues that regardless of
the statutory language, the legislative
history and purpose of the PLRA supports
his position. He contends that the only
purpose of sec. 1997e is to ferret out
frivolous claims and implies that
excessive force claims are never
frivolous. Smith views the addition of
the words "with respect to prison
conditions" to the amended version of
sec. 1997e as a signal that Congress
wanted to create a narrow exhaustion
requirement that would not apply to
claims involving particularized instances
of force. He looks to a recent decision
of the Second Circuit for support. Nussle
v. Willette, 224 F.3d 95, 101 (2d Cir.
2000), cert. granted, 2001 WL 589145(June 4, 2001) (No. 00-853) (term "prison
conditions" does not refer to single or
momentary matters directed at particular
individuals)./3
While we will concede that restricting
frivolous claims was one of the
objectives served by sec. 1997e, it was
not the only purpose, nor is it the only
benefit garnered from requiring litigants
to utilize the prison grievance process
before filing suit in court. The
exhaustion requirement provides the
prison system with prompt notice of
problems. This, of course, is preferable
to a system where the prison might get
its first notice of a claim in a lawsuit
filed several years later just before the
running of a statute of limitations.
Requiring prompt notice and exhaustion
also gives prison officials an
opportunity to address a situation
internally, which in a case like this
could involve relocating Smith, firing
guards, hiring new ones, or providing
additional training and supervision to
staff. The process also helps develop the
factual record, before the prisoner moves
to the courtroom. In fact, the
administrative process may make
negotiation more effective and may serve
to reduce the scope of litigation should
some, if not all, of the inmate’s
grievances be resolved internally. Perez
v. Wisconsin Dep’t of Corr., 182 F.3d
532, 535 (7th Cir. 1999) ("negotiation
may be more effective if a lawsuit is not
on file").
Next, we note that deterring frivolous
suits could not have been the only issue
Congress had in mind. In 1996 Congress
did create a subsection of sec. 1997e
which specifically addressed frivolous
suits--subsection c. This subsection
gives courts the power to dismiss suits
that are frivolous, malicious, or fail to
state a claim. 42 U.S.C. sec. 1997e(c)
(1996). If the only purpose of sec. 1997e
was to bar frivolous suits, then Congress
need not have done more. Yet, the 1996
amendment added several other provisions
to sec. 1997e concerning attorneys’ fees,
telephonic hearings, and waiver.
Moreover, Congress specifically
strengthened the exhaustion requirement
of sec. 1997e in three ways: (1) by
making exhaustion mandatory rather than
discretionary, (2) by extending the reach
of the requirement to all federal claims,
not only sec. 1983 actions, and (3) by
removing the prior restriction that
exhaustion was required only if the
prison system had an adequate
administrative review process which
complied with some minimum procedural
standards. See 42 U.S.C. sec. 1997e
(1994). Given this flurry of activity, we
must conclude that Congress intended to
create a comprehensive exhaustion
requirement for all federal claims.
Nonetheless, citing sound-bites from the
pre-passage floor debates, Smith argues
that Congress intended to create a
subject matter exception to the
exhaustion requirement for excessive
force claims because these are
particularized attacks. First, the PLRA
already contains a subject matter
exception, suggesting that Congress had
already considered which class of cases
should be exempt from this legislation.
Walker v. O’Brien, 216 F.3d 626, 633-37
(7th Cir. 2000) (PLRA does not apply to
petition for writ of habeas corpus
properly filed under either 28 U.S.C.
sec. 2241 or sec. 2254); 2A Sutherland
Statutory Construction sec. 47.23 (The
general rule of statutory construction is
that the enumeration of specific
exclusions from the operation of a
statute is an indication that the statute
should apply to all cases not
specifically excluded.).
Second, Smith mischaracterizes the
effect of the exhaustion requirement.
Requiring administrative review does not
foreclose a prisoner’s ability to file
suit, it merely creates a necessary
precondition. The requirement is not
designed to stop prisoners from filing
suits, but rather to facilitate the
litigation process. In particular, the
development of the factual record may
help rather than hinder prisoners,
enabling them to succinctly present their
cases.
More importantly, the standard Smith
urges us to accept--an exception for
particularized instances of force
directed at a specific inmate--is a
cumbersome test to apply. Following this
standard would validate the old cliche of
the exception swallowing the rule. Any
claim could be fashioned to fit this
requirement, not merely claims of
excessive force. In fact, applying this
standard, the Second Circuit has recently
extended the scope of the exception it
recognized in Nussle by holding that
particularized instances of retaliatory
conduct, like particularized instances of
force, are not subject to the PLRA’s
administrative exhaustion requirements.
Lawrence v. Goord, 238 F.3d 182, 185 (2d
Cir. 2001). The Second Circuit, it seems
to us, is traveling down a slippery
slope. The better view, we think, is that
of the Third, Sixth, and Eleventh
Circuits, which agree with the view we
express in this opinion. See Booth, 206
F.3d at 295; Freeman, 196 F.3d at 644;
and Higginbottom, 223 F.3d at 1260.
In addition, even were we to accept
Smith’s argument that the only purpose
Congress had in passing sec. 1997e was to
bar frivolous lawsuits, even this limited
objective would not be served by creating
the exception he urges. Were we to create
either a subject matter exception for
excessive force claims or a more flexible
exception for particularized instances of
force, we would open the doors to
frivolous suits. Excessive force claims
can be frivolous. Inmates can allege they
were subject to vicious nudges. Or, to
stretch the case, a dirty look by a
prison guard could be characterized as a
particularized instance of harassment
singling out one inmate. The
possibilities are limitless and the end
result would be to undermine the steps
Congress took in 1996 to strengthen the
administrative review process in prisons,
both state and federal.
Finally, the recent decision in Booth
adds further to the view that the PLRA’s
exhaustion requirement is indeed very
broad. There the Supreme Court held that
administrative exhaustion was required
despite the fact that the only remedy
sought--money damages wwas not available
as an award in Pennsylvania’s prison
grievance system. It is also interesting
to note that the Supreme Court, although
not discussing the point, required
exhaustion in Booth even though the
prisoner’s claim grew, like here, out of
an alleged assault of a prisoner by
corrections officers.
We now turn to Smith’s two final
arguments, futility and substantial
compliance. Citing dicta in Perez v.
Wisconsin Department of Corrections, 182
F.3d 532, 538 (7th Cir. 1999) ("It is
possible to imagine cases in which the
harm is done and no further
administrative action could supply any
remedy."), Smith argues that he was not
required to exhaust his administrative
remedies because his injury was complete
and the remedy he sought was monetary
damages, which the administrative review
process does not provide. Booth, as we
just noted, ends this argument. Moreover,
we do not accept Smith’s characterization
of his claim as complete. When the
incident occurred, Smith was still
serving his term and was still subject to
the supervision of his alleged abusers.
Had he filed an administrative claim
there were several remedies available to
him, including transferring him to
another facility or disciplining or
retraining the guards.
Finally, Smith argues that the incident
occurred in 1995 before the passage of
the PLRA amendments, and thus by filing
several complaints he substantially
complied with the exhaustion requirement.
The substantial compliance doctrine
arises only when a prisoner’s claim arose
before April 26, 1996, the effective date
of the PLRA amendment. In such cases, a
prisoner may show that he substantially
complied with the exhaustion requirement
by making a good faith attempt to reach
the appropriate prison official. See
Wolff v. Moore, 199 F.3d 324, 327 (6th
Cir. 1999). In response to the
government’s motion to dismiss based on
Smith’s failure to exhaust administrative
remedies, Smith argued only that he was
not required to exhaust. Thus, by failing
to raise the issue of substantial
compliance before the district court, he
waived this argument. Schoenfeld v.
Apfel, 237 F.3d 788, 793 (7th Cir. 2001).
AFFIRMED.
FOOTNOTES
/1 We express our appreciation to Sunil R. Harjani,
an attorney with the Chicago firm of Jenner &
Block, who, acting pro bono at the request of the
court, has very ably represented Mr. Smith on
this appeal.
/2 After oral argument on this appeal, just several
days ago on May 29, the Supreme Court affirmed
the Third Circuit in Booth (see 2001 WL 567712),
an opinion we will comment on in a few moments.
/3 Nussle begins the discussion of when administra-
tive review should be required by noting that
exhaustion is not a prerequisite for maintaining
an action under sec. 1983. Nussle v. Willette,
224 F.3d 95, 97-98 (2d Cir. 2000). We note that
in 1996 Congress extended the scope of the PLRA
exhaustion requirement to claims arising under
any federal law. Because the exhaustion require-
ment is no longer restricted to civil rights
cases, the rationale for exempting these suits
from administrative review is even less compel-
ling.
Williams, Circuit Judge, dissenting. I do not
believe that the plain meaning of "prison condi-
tions" under sec. 1997e(a), or the definition in
sec. 3626(g)(2), includes the random, violent
assault alleged in this case./1 As that is the
only question we need to resolve today, I will
not reach the issue whether a categorical exemp-
tion exists for claims of excessive force, except
to note that my analysis is consistent with
opinions that conclude that a categorical exemp-
tion does exist. See Nussle v. Willette, 224 F.3d
95, 99-106 (2d Cir. 2000), cert. granted, Porter
v. Nussle, No. 00-853, 2001 WL 589145 (U.S. June
4, 2001); Booth v. Churner, C.O., 206 F.3d 289,
300-03 (3d Cir. 2000) (Noonan, J., concurring and
dissenting). Nor do I believe that a reasonable
consideration of the context, object, and policy
of sec. 1997e and the Prison Litigation Reform
Act ("PLRA") as a whole warrants concluding
otherwise. I therefore respectfully dissent.
When the language of a statute is plain and
unambiguous, we apply the plain meaning (period).
Connecticut Nat’l Bank v. Germain, 503 U.S. 249,
253-54 (1992); United States v. Hayward, 6 F.3d
1241, 1245 (7th Cir. 1993). In ascertaining the
plain meaning of the language, however, we should
not read with blinders on--context matters.
Robinson v. Shell Oil Co., 519 U.S. 337, 340-41
(1997). But that latter principle has limits;
invoking "context," we may not redraft language
Congress enacted simply because the language may
fail to achieve Congress’s entire purpose as we
perceive it. See Dunn v. Commodity Futures Trad-
ing Comm’n, 519 U.S. 465, 470 (1997) ("[A]bsent
any indication that doing so would frustrate
Congress’s clear intention or yield patent absur-
dity, our obligation is to apply the statute as
Congress wrote it." (alteration in original)
(internal quotation marks omitted)); see also
Smith v. United States, 508 U.S. 223, 247 n.4
(1993) (Scalia, J., dissenting) ("Stretching
language in order to write a more effective
statute than Congress devised is not an exercise
we should indulge in."); Pavelic & LeFlore v.
Marvel Entm’t Group, 493 U.S. 120, 126 (1989)
("Our task is to apply the text, not to improve
upon it."); United States v. Locke, 471 U.S. 84,
95 (1985) ("[T]he fact that Congress might have
acted with greater clarity or foresight does not
give courts a carte blanche to redraft statutes
in an effort to achieve that which Congress is
perceived to have failed to do."). In this case,
the majority appears to be fixing the language of
sec. 1997e(a), more than truly interpreting it
according to its plain meaning, context consid-
ered.
To the language of the statute, then. The
statute itself does not define "prison condi-
tions." If only as a preliminary, working defini-
tion, Webster’s Dictionary defines "conditions"
as "attendant circumstances: existing state of
affairs." Webster’s Third New International
Dictionary 473 (1986). As examples, Webster’s
lists "living conditions," "playing conditions,"
and "adverse weather conditions." Id. Conditions,
as the definition suggests, does not refer to
random events. Accord Nussle, 224 F.3d at 101.
For instance, a rotted tree that happens to fall
on an unsuspecting golfer while playing on a golf
course is not a "playing condition"/2 of that
course. Furthermore, when the random event is an
action (i.e., conduct by a person), the descrip-
tion seems to evoke more discord than sense. For
instance, and closer to the facts of our case,
one would not say that a teacher’s sexual abuse
of a student is part of "elementary school condi-
tions."
In common parlance, conditions--circumstances or
states, under our definition--largely refer to
the physical environment or surroundings in which
something is situated. When applied to conduct
specifically, the term implies, and seemingly
requires, that the conduct occur with regularity,
meaning that it is common and usual--which, when
applied to conduct of officials part of an insti-
tution, suggests a policy or routine practice in
the institution. As an example, in a high crime
area a robbery (though not always frequent) is a
"condition," because it is common and usual in
such an area. Or, taking the first of the two
earlier examples, if rotted trees are widespread
on a golf course and frequently fall (even if on
the same hapless golfer), then falling trees
could be said to be a "condition," because common
and usual to that course./3 But it is strange,
if not strained, to refer to a random, violent
assault by prison officials as conditions, or as
a condition./4
But I do not understand my colleagues to quib-
ble with the plain meaning of the statute we are
asked to interpret. Instead, the majority borrows
the definition of prison conditions contained in
18 U.S.C. sec. 3626(g)(2)--another provision of
the PLRA passed along with sec. 1997e(a)--which
defines a "civil action with respect to prison
conditions" as "the conditions of confinement or
the effects of actions by government officials on
the lives of persons confined in prison." I must,
however, take issue with the conclusion that the
random, violent assault in this case fits within
that definition.
Apparently the majority concedes that excessive
force is not included within the first clause of
the definition. Ante, at 4; see also, e.g., Booth
v. Churner, C.O., 206 F.3d 289, 294 (3d Cir.
2000) aff’d on other grounds, Booth v. C. O.
Churner, 121 S. Ct. 1819 (2001). Indeed, exces-
sive force fits no better in that definition
(conditions of confinement) than the language of
sec. 1997e(a) (prison conditions) for essentially
the same reasons, which is hardly a surprise
because the language is virtually the same. The
majority concludes that excessive force is in-
cluded within the second clause. Ante, at 4. But
the language of the second clause addresses only
claims relating to the "effects of actions."
Claims of excessive force are not claims relat-
ing to effects; they are claims relating to
actions. See Hudson v. McMillian, 503 U.S. 1, 7-
11 (1992). Hudson recognizes this difference,
excluding excessive force claims from the "ex-
treme deprivation" requirement applicable to
conditions of confinement claims under the Eighth
Amendment. Id. For claims of excessive force, the
action itself violates the Eighth Amendment. Id.
at 9 ("When prison officials maliciously and
sadistically use force to cause harm, contempo-
rary standards of decency always are violated.
This is true whether or not significant injury is
evident." (citations omitted)). But for condi-
tions-of-confinement-type claims, the extreme
deprivation--i.e., the effects--creates an Eighth
Amendment violation, not the actions themselves.
See Rhodes v. Chapman, 452 U.S. 337, 345-47
(1981). Therefore, the second clause definition,
addressing claims relating to the "effects of
actions," cannot necessarily be said to include
excessive force.
So it cannot be the language of the statute
that is driving the majority to conclude that
claims of excessive force are included within
"prison conditions" under sec. 1997e(a). Rather,
the majority relies on the context, object, and
policy of the statute to conclude that claims of
excessive force should be included within the
exhaustion requirement of sec. 1997e(a). Ante, at
4-9. But equally persuasive arguments have been
advanced by others that they should not be in-
cluded. See Nussle, 224 F.3d at 103-06; Booth,
206 F.3d at 301-02 (Noonan, J., concurring and
dissenting). We are simply not in the business of
deciding what statutes should or should not say,
but deciding what they in fact do say. And, this
statute certainly does not say that the random,
violent assault involved in this case must be
exhausted in administrative proceedings./5
It may be that Congress really did want to
include this kind of claim in sec. 1997e(a)’s
"prison conditions" exhaustion requirement. The
problem is that Congress did not write language
in this statute to accomplish that objective. In
the end, I am not convinced that we have a
justifiable reason to strain the language Con-
gress wrote to accomplish an intent we can only
speculate exists. I do not believe that the plain
meaning of prison conditions under sec. 1997e(a)
includes the random, violent assault involved in
this case, and therefore I respectfully dissent.
FOOTNOTES
/1 Smith alleges that several prison guards entered
his cell, ordered him to walk out, and immediate-
ly after he complied, beat him in the face,
buttocks, and groin. According to Smith, the
guards handcuffed him, beat him while cuffed, and
took him to prison showers where they continued
to hit, stomp, and jab him with batons. Smith was
next taken outside to a special housing unit
where the guards slammed his head into a metal
plate, stripped him naked, and beat him repeated-
ly over the span of an unspecified length of
time. The guards finally locked him in a segrega-
tion cell, naked and bleeding, releasing him the
next day and denying him medical treatment until
approximately one week later.
/2 Note, whether one uses the singular "condition"
or the plural "conditions," the incongruity
remains the same.
/3 One would not say that falling trees are a
"playing condition," however, because dodging
falling trees has nothing to do with the game of
golf.
/4 Worse yet, it seems unreasonable to refer to such
conduct as prison conditions. Accord Booth, 206
F.3d at 301 (Noonan, J., concurring and dissent-
ing) ("That [the plaintiff’s] alleged blow took
place in a prison does not make it ’prison
conditions.’"); cf. Farmer v. Brennan, 511 U.S.
825, 834 (1994) ("Being violently assaulted in
prison is simply not ’part of the penalty that
criminal offenders pay for their offenses against
society.’").
/5 I express no opinion whether the context, object,
and policy of sec. 3626 (a very different stat-
ute) warrants including in that section claims of
excessive force, or the random, violent assault
in this case.